Kavanaugh's lips sealed on White House subpoenas, pardons

By Mark Sherman and Lisa MascaroThe Associated Press

Wednesday

Sep 5, 2018 at 7:55 PMSep 5, 2018 at 7:55 PM

WASHINGTON — Pressured by Democrats with Donald Trump on their minds, Supreme Court nominee Brett Kavanaugh rejected repeated efforts at Wednesday's Senate confirmation hearing to reveal his views about a president pardoning himself or being forced to testify in a criminal case.

For a second day, the judge nominated by Trump insisted to probing senators that he fully embraced the importance of judicial independence. But he refused to provide direct answers to Democrats who wanted him to say whether there are limits on a president's power to issue pardons, including to himself or in exchange for a bribe. He also would not say whether he believes the president can be subpoenaed to testify.

"I'm not going to answer hypothetical questions of that sort," Kavanaugh said in response to a question from Sen. Patrick Leahy of Vermont about pardons. Still, he began his long day in the witness chair by declaring that "no one is above the law."

The Senate Judicial Committee hearing has strong political overtones ahead of the November congressional elections, but as a practical matter Democrats lack the votes to block Kavanaugh's confirmation.

They are concerned that Kavanaugh will push the court to the right on abortion, guns and other issues, and that he will side with Trump in cases stemming from special counsel Robert Mueller's investigation of Russian interference in the 2016 election and possible ties to the Trump campaign. The 53-year-old appellate judge answered cautiously when asked about those most matters.

Protesters continued their efforts to interrupt the hearings, but senators basically ignored their shouts as they were removed by police. Democrats' complaints also persisted that they were being denied access to records from Kavanaugh's time in the George W. Bush White House.

One TV viewer gave Kavanaugh a rave review.

Trump said he had been watching the hearings and thought the Democrats were "grasping at straws" in questioning the man he chose to replace retired Justice Anthony Kennedy. He said he "saw some incredible answers to very complex questions."

The committee's top Democrat, Dianne Feinstein of California, disagreed. "He's not being very specific," she said during a break in the proceedings.

The Democrats weren't the only ones who recognized the importance of questions about Trump and the Russia investigation. Committee Chairman Chuck Grassley, an Iowa Republican, asked Kavanaugh right away whether he would be independent from the president who chose him for highly prestigious lifetime position.

Kavanaugh said, "The first thing that makes a good judge is independence, not being swayed by political or public pressure."

He cited historic cases including the Brown v. Board of Education ruling that desegregated schools and the U.S. v. Nixon decision that compelled the president to turn over the Watergate tapes — a ruling that Kavanaugh had previously questioned.

"That takes some backbone," he said of the justices who decided those cases.

But when asked more specific questions, including whether a president can be required to respond to a subpoena, Kavanaugh said, "I can't give you an answer on that hypothetical question."

The Supreme Court has never answered that question, and it is among the potentially most important since Trump could face a subpoena from special counsel Mueller.

Sen. Amy Klobuchar, a Minnesota Democrat, asked whether a president could be criminally investigated or indicted. Kavanaugh again said he had never taken a position on those issues, though he did write in a 1998 article that impeachment may be the only way to hold a president accountable while in office.

"The Constitution itself seems to dictate, in addition, that congressional investigation must take place in lieu of criminal investigation when the President is the subject of investigation, and that criminal prosecution can occur only after the President has left office," he wrote in the Georgetown Law Review.

On abortion, Kavanaugh said the landmark 1973 Roe v. Wade decision that ensures access to abortion has been affirmed "many times."

"Respect for precedent is important. ... Precedent is rooted right in the Constitution itself," he said.

Kavanaugh likened Roe v. Wade to another controversial, landmark Supreme Court decision, the Miranda ruling about the rights of criminal suspects. Kavanaugh said the court specifically reaffirmed both decisions in later cases that made them "precedent on precedent."

Kavanaugh defended his dissenting opinion last year in the case of a pregnant immigrant teen in federal custody. Kavanaugh would have denied her immediate access to an abortion, even after she received permission from a Texas judge.

Sen. Orrin Hatch, R-Utah, praised Kavanaugh for hiring female lawyers as clerks as a judge on the District of Columbia Court of Appeals, and then posed questions about whether Kavanaugh was aware of sexual harassment allegations against retired circuit court Judge Alex Kozinski in California. Kavanaugh considered the judge a friend and mentor and Kozinski testified at Kavanaugh's 2006 confirmation hearing to be an appellate judge.

Kavanaugh said he had known nothing about the allegations until they were disclosed last year. "It was a gut punch for me," he said, and he was "shocked, disappointed, angry."

The judge's work in the Bush White House also has figured in the hearing, particularly as Democratic senators have fought for access to documents from his three years as staff secretary. They say those could shed light on his views about policies from that era, including the detention and interrogation of terror suspects. Majority Republicans have declined to seek the papers, and instead have gathered documents from his work as White House counsel to Bush. Many are being held as confidential within the committee.

Democratic Sen. Dick Durbin of Illinois asked Kavanaugh if he would seek a delay in his hearing so the paper trail could be vetted.

But Kavanaugh declined to engage, saying. "I do not believe that's consistent" with the way prior nominations have been handled.

Kavanaugh stood by his 2006 testimony when nominated for the appellate court when he said he was not involved in some Bush-era policies, particularly a bill-signing statement on the treatment of terror suspects that would have passed his desk as staff secretary.

Kavanaugh said his earlier testimony was "100 percent accurate."

Republicans hope to confirm Kavanaugh in time for the first day of the new Supreme Court term, Oct. 1. They now have a 51-49 majority in the Senate, after Jon Kyl was sworn in Wednesday to fill the seat held by the late Sen. John McCain of Arizona

One of several Democrats who could potentially vote for Kavanaugh, Sen. Joe Manchin of West Virginia, joined the hearing in the audience for a while. He is up for re-election this fall in a state Trump won handily in 2016. Independent Sen. Angus King of Maine also stopped in for part of the session.

Associated Press writer Jessica Gresko contributed to this report.

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